Jackson v. Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARL LLOYD JACKSON, 

Petitioner-Appellee,

v. No. 04-99006

JILL BROWN, Warden, Acting  D.C. No.

Warden, California State Prison at CV-95-03286-ER

San Quentin,

Respondent-Appellant.



EARL LLOYD JACKSON, 

Petitioner-Appellant,

No. 04-99007

v.

JILL BROWN, Warden, Acting  D.C. No.

CV-95-03286-ER

Warden, California State Prison at

OPINION

San Quentin,

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Edward Rafeedie, District Judge, Presiding

Argued and Submitted

December 7, 2006—Pasadena, California

Filed January 23, 2008

Before: Kim McLane Wardlaw, Richard A. Paez, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Wardlaw

885

JACKSON v. BROWN 889

COUNSEL

Tracy J. Dressner, La Crescenta, California, and Jay L. Licht-

man, Los Angeles, California, for the petitioner-appellee/

cross-appellant.

Bill Lockyer, Attorney General; Robert R. Anderson, Chief

Assistant Attorney General; Pamela C. Hamanaka, Senior

Assistant Attorney General; Scott A. Taryle, Deputy Attorney

General; Kyle S. Brodie, Deputy Attorney General; and Susan

Lee Frierson, Deputy Attorney General, Los Angeles, Califor-

nia, for the respondent-appellant/cross-appellee.

OPINION

WARDLAW, Circuit Judge:

Earl Jackson petitions for a writ of habeas corpus challeng-

ing (1) his state court convictions for two counts of burglary

and two counts of murder, (2) the jury’s findings of special

890 JACKSON v. BROWN

circumstances making him death-eligible, and (3) his ultimate

death sentence. The district court denied relief as to his con-

victions, but granted conditional relief as to the special cir-

cumstances findings and the death sentence.1 Warden Brown

(the “State”) does not appeal the district court’s judgment as

to the death sentence itself, but appeals the relief granted as

to the special circumstances findings.2 Jackson cross-appeals

the district court’s denial of relief as to the underlying convic-

tions. We affirm the district court’s partial grant of Jackson’s

petition as to the special circumstances and death sentence

and its partial denial as to his convictions.

I. BACKGROUND

A. The Crimes of Conviction

In 1977, two elderly widows—neighbors in the same apart-

ment building in Long Beach, California—were beaten to

death during burglaries of their residences. Vernita Curtis,

eighty-one, was found lying unconscious on her bedroom

floor on August 29, 1977. Her face was swollen and severely

bruised. She had suffered multiple injuries to her head, neck,

and chest, and died in the hospital four days later. Less than

two weeks later, her next door neighbor, Gladys Ott, ninety,

was found dead in her bed. The injuries suffered by Ott were

even more severe, and included bruises on her face, broken

ribs, a fractured sternum, a detached lung, and extensive lac-

erations to her vagina. Various household items were missing

1

The district court’s conditional grant gives the State of California 120

days from the entry of judgment to either retry Jackson as to the special

circumstances findings or vacate the special circumstances findings and

death sentence. Judgment was entered but stayed pending this appeal.

2

If the district court judgment stands, Jackson cannot be re-sentenced to

death unless the Los Angeles District Attorney’s Office first retries Jack-

son as to both the special circumstances and the death sentence. If we were

to reverse the district court as to the special circumstances finding, Jack-

son could be sentenced to death after only a penalty phase retrial, without

re-litigating the special circumstances that rendered him death-eligible.

JACKSON v. BROWN 891

from both apartments, and Ott’s apartment had been ran-

sacked.

Jackson was sought for questioning after his fingerprints

were found in Ott’s apartment. He turned himself in to the

police and gave two recorded statements. In the initial round

of questioning, Jackson denied any participation in the crime.

Instead, he said he was weightlifting on a nearby balcony and

saw someone walking around looking at the neighborhood

houses. He went for a walk later that evening and passed Ott’s

front door. He told the police: “the lady’s door was open so

I just you know, opened the door, walked in. When I walked

in the lady was laying in bed. I seen the bottle and I touched

it you know.”

Jackson subsequently recanted and confessed to his

involvement in the burglaries that led to the two murders. He

said he had a number of accomplices with whom he had bro-

ken into the apartments seeking money. He entered Ott’s

apartment at night through a kitchen window and unlocked

the front door for his accomplices. He claimed their purpose

was “[t]o find money. That’s all.” When Ott awoke, one of

Jackson’s accomplices punched her in the jaw, apparently

knocking her unconscious. Jackson admitted to “grabb[ing]

her two or three times” and asking her where her money was.

Jackson also said, “I think I hit her once, just once.” He

described taking a television, a vacuum cleaner, and a toaster.

Jackson also described the Curtis burglary. He attributed

the idea to one of his accomplices, Elton Boyd, who was later

convicted for his participation in Curtis’s murder. Jackson

claimed that he did not know Curtis was in the apartment

asleep and that she had woken up in the middle of the bur-

glary. Boyd grabbed Curtis and told Jackson to hold her. Jack-

son complied, believing that Boyd was only planning to tie

her up, but Boyd instead started to hit her. Boyd’s actions

“kind of shocked [Jackson]. He hit her so quick. It happened

so fast.” Jackson “didn’t know that [Boyd] was trying to kill

892 JACKSON v. BROWN

her or nothing.” He did not find out that Curtis had died until

a few days later.

B. The Trial

Jackson was charged with two counts of first-degree mur-

der and two counts of burglary. He was represented by Theo-

dore Veganes, a court-appointed defense attorney. The case

was prosecuted by Paul Marin, a Los Angeles County deputy

district attorney from Long Beach.

At trial, the prosecution presented Jackson’s taped confes-

sion, along with the testimony of several other witnesses tying

him to the crimes. Al Rivera, an identification officer with the

Long Beach police, testified that he had matched a number of

Jackson’s fingerprints to the prints lifted at Ott’s apartment.

Nathaniel Johnson, an older gentlemen who was familiar

with Jackson, testified that he convinced Jackson to turn him-

self in to the police. According to Johnson, Jackson said that

“[t]hey looking for me on a murder rap which I didn’t do.”

Jackson apparently told Johnson that he knew that “four or

five” people were involved in the murder and claimed the

police would never know who was involved unless he told

them.

One witness, Ilena Gaines, testified that she lived in an

apartment upstairs from Curtis and saw Jackson outside the

apartment building when the paramedics removed Curtis from

the building. According to Gaines, when Jackson saw Curtis,

he “smiled” and “laughed” and “said that he was the one who

did that.” On cross-examination, however, Gaines admitted

that Elton Boyd, Jackson’s alleged accomplice, was her boy-

friend and the father of one of her children. She admitted that

Boyd had himself been convicted for Curtis’s murder and that

he blamed Jackson for “say[ing] he beat the old lady up when

he didn’t.” Finally, Gaines admitted that she had only come

forward with her description of Jackson’s statements and

JACKSON v. BROWN 893

actions after Boyd’s arrest, even though she had previously

been questioned about the Curtis killing.

The prosecution read to the jury the testimony of two

unavailable witnesses who had previously testified at the pre-

liminary hearing. The first was Larry Rushing, a fugitive who

claimed to know Jackson “from the streets.” Rushing stated

that in August 1977, Jackson told him that he had “ripped off

the house downstairs” and “said something about he had hit

the old lady.” Rushing had also seen Jackson try to enter one

of the apartments when the “lady left to go to the church.” On

redirect, he said Jackson told him “that the old lady had

messed around and walked in on him and he hit her.”

The second unavailable witness was Debria Lewis, a

woman acquainted with Jackson. Her preliminary hearing tes-

timony was read at trial and described a conversation with

Jackson on the evening of September 11, 1977. According to

Lewis, Jackson “was looking in the evening paper and he saw

the article there of Curtis, the 83-year-old woman. And he

said, ‘This is what I done.’ ” Jackson further said that “if she

had just been still—she had been still and given him the

money, that she would have been walking around today.”

Lewis spoke with the police on September 13, 1977, describ-

ing her conversation with Jackson. In this discussion with the

police, Lewis attributed statements to Jackson that “he and his

partners had planned what they were going to do for a couple

of weeks but one of them messed up” and also that “if she had

been still, she would not have been choked to death.”

Debra Ann Hall, Jackson’s cousin, testified that she talked

to Jackson on September 11, 1977 at Debria Lewis’s apart-

ment. Hall claimed that he pointed out a newspaper article

about the deaths of Curtis and Ott and said something to the

substance of “this is what I did.” Jackson also told Hall that

he did it because “he needed some money.”

894 JACKSON v. BROWN

Finally, the State presented two inmates who claimed to

have met Jackson in jail. Ronald McFarland testified to a con-

versation with Jackson in October 1977:

Well, we talked about his case. He was telling me

about his case, about the murder case; that he killed

an older, aged woman in Long Beach here, and he

told me that him and three of his buddies—one

stayed outside and him and the other two went into

the side kitchen window of her house and they

started ransacking her house and then the lady came

out of her bedroom. And Jackson said he seen her

and pushed her back onto the bed and started beating

her, and then they continued to ransacking. And then

the old lady woke up and started hollering and Jack-

son started beating her and then she was uncon-

scious. This is what he told me.

And then he said he seen a wine bottle or long-

necked bottle of some kind and stuck it into her

vagina.

On redirect, prosecutor Marin queried, “And is it true that no

one promised you anything in exchange for your testimony

against Mr. Jackson?” McFarland responded, “Yes, that’s

right.”

Another co-prisoner, Mark Mikles, claimed to have had

several conversations with Jackson. According to Mikles, a

group of inmates were “woofing at Jackson about his cases,

you know, trying to make him into a tough guy because he

had a couple of 187’s.” He recounted:

So, one guy told him—he says “Come on, man, you

know you killed those two old ladies.

And at first he said “Na, na, that ain’t me man.”

JACKSON v. BROWN 895

And they woofed at him for a little while, you

know. “You are out there doing it up real big.” He

says, “You know you killed those two old dudes.”

In the crowd—it was a little group over in a cor-

ner. He said, “So what if I did kill those two old

bitches, those two old white bitches?”

Mikles went on to describe a one-on-one conversation with

Jackson:

I said, “You had a couple of hot murder cases, a

couple of 187’s?”

He said, “Yeah.”

I says, “How did you pick up a couple—a couple

of murders in a robbery or something?”

He said, “No. I had a burglary.”

I tell him, “How did you turn a burglary into a

robbery”—excuse me—“a burglary into a murder?”

He said, “Oh, a couple of—me and a couple of my

partners, you know, we were out going to do this

burglary in this apartment complex and we all went

in and we were ransacking the house.”

He was in—he was in the living room, wrapping

up the TV. I remember him telling me something

about wrapping up a TV wire or something like that,

and this old lady comes up in the hallway, and I

guess he caught her attention or something, you

know, or she might have made some noise. I can’t

really remember what cause his attention about it,

you know. I can’t foresee anything catching my

attention when I am ransacking a house, but he went

896 JACKSON v. BROWN

over and hit her a couple of times, and I guess she

was backing up into the bedroom, and he kept firing

on her until she—he knocked her out on the bed.

. . . So he is going—he is in the bedroom, and the

lady is making noise. She is waking up. She is

screaming or something, so he beats on her a couple

of more times, you know. How many times I really

couldn’t say, till he knocked—till what it appeared,

he knocked her out again. She fell down on the bed.

...

....

He told me, when she got up the second time

instead of, instead of her sitting there and being cool,

she started screaming and making a lot of noise.

....

I asked him the question, you know, “Why, you

know, because she was, you know—she was so old

—why pounce on her so much?”

And he said that when she woke up, you know, he

just went off. It just pissed him off so bad, because—

because he sick—he beat her on the point, when he

knocked her out again, he told me that he was so hot

at her that there was a bottle on the stand next to the

bed and he took the bottle and he fucked her in her

pussy with it, his exact words he told me.

On cross examination, defense attorney Veganes tried to

impeach Mikles with his convictions for armed robbery, for

which he was still awaiting sentencing. In particular, Veganes

asked Mikles about his contact with the police:

Q When did you go to the police pursuant to this

information that you just told us about?

JACKSON v. BROWN 897

A I believe it was around the end of March.

Q You know about this from February and before,

and you decided to go to the police at the end of

March; is that correct?

A Yes.

Q And why did you go to the police at that particu-

lar time?

A Because the police were sent to me by other

police?

....

Q The police were sent to you?

A Yeah.

Q By other police?

A Right.

Q And those are the police that are holding your

case in Norwalk?

A No.

....

Q And you were still awaiting sentence on this

offense and still awaiting sentence in Norwalk;

is that correct?

A I am not sure about my cases here. I can’t

remember if I had already been sentenced or not.

898 JACKSON v. BROWN

Q Don’t you have an extreme desire that the cases

in Norwalk be sentenced—or be sentenced con-

current with the time that you are doing here in

the Long Beach cases?

....

A Yeah, it has been decided since March that is

exactly what is going to happen in those cases.

Q That is what you would like to happen?

A That is what I know is going to happen. It is part

of the plea bargain.

Q You know what is going to happen in Norwalk

before you are even sentenced?

A Yeah.

Q And the time you are doing on this case you are

going to credit for the four counts of robbery

you are doing in Norwalk?

A To be run concurrent.

On redirect, Mikles testified that he did not tell the police

about Jackson’s statements until after he had entered into the

plea bargain in Norwalk. Prosecutor Marin then questioned

Mikles further about his police interactions:

Q All right. Now did anyone, up to the time that

you have testified now on this witness stand—

did anyone—when I say “anyone,” I include

sheriffs, police, District Attorneys; in other

words, anyone in law enforcement—did anyone

—probation officers—did anyone promise you

JACKSON v. BROWN 899

anything in exchange for your testifying about

the conversation that Jackson had with you?

A Just a lot of protection.

Q Pardon?

A Just a lot of protection.

Q Just a lot of protection?

A Yeah

Q Is that about all?

A That’s it.

Q And who, incidentally, promised you protec-

tion?

A The Sheriff’s Department did.

In addition to these witnesses tying Jackson to the crime,

the prosecution presented several witnesses who testified to

the general circumstances in which the bodies were found.

Manuel Breton, a deputy medical examiner at the Los Ange-

les County Coroner’s office, described Ott’s injuries in detail.

He testified that all of Ott’s injuries, except those to the

vagina, were caused by blunt force trauma, like a fist or the

wall, and that at least eight to ten blows would have been

required to cause the injuries. He further opined that the vagi-

nal injuries were caused by the insertion of a foreign object.

Marin asked, “Caused by a bottle?” and Breton testified,

“Yes, it could have been.” Finally, he testified that the cause

of Ott’s death was asphyxiation by manual strangulation.

900 JACKSON v. BROWN

C. The Special Circumstances Findings and the Death

Penalty

On January 5, 1979, Jackson was convicted on both counts

of first-degree murder and both counts of burglary.

Under the 1977 California death penalty statute, at least one

“special circumstance” finding was required for a defendant

to qualify for a sentence of death or life without parole. Cal.

Penal Code § 190.2 (1977). The jury found two special cir-

cumstances rendering Jackson death-eligible: (1) that Ott’s

murder was willful, deliberate, and premeditated and was

committed during the commission of a burglary (“murder dur-

ing the commission of a burglary”), and (2) that Jackson had

in this proceeding been convicted of more than one offense of

murder (“multiple murder”). Each of these special circum-

stances findings required that “[t]he defendant was personally

present during the commission of the act or acts causing

death, and with the intent to cause death physically aided or

committed such act or acts causing death.” Id. § 190.2

(emphasis added).

In the separate penalty phase of the trial, the jury returned

a verdict of death for Ott’s murder. Jackson received a life

sentence for Curtis’s murder and four-year sentences for each

burglary, all to run concurrently.

D. Post-conviction proceedings

On automatic appeal to the California Supreme Court,

Jackson challenged the constitutionality of the state’s 1977

death penalty statute and raised various other claims of error.3

3

Jackson argued that much of the evidence used against him was inad-

missible, including his confession, People v. Jackson, 28 Cal. 3d at 297;

photographs of Curtis’s corpse, id. at 302; evidence of Ott’s sexual assault,

id. at 303; Ilena Gaines’s testimony about Elton Boyd’s statements, id. at

306; and the preliminary hearing testimony of Larry Rushing and Debria

JACKSON v. BROWN 901

People v. Jackson, 28 Cal. 3d 264 (1980). Jackson simulta-

neously petitioned the California Supreme Court for a writ of

habeas corpus based on ineffective assistance of counsel.4 Id.

at 282. On October 23, 1980, in a 4-3 decision, the court

issued a consolidated opinion affirming the judgment and

denying Jackson’s habeas petition. Id. at 282. On March 30,

1981, the United States Supreme Court denied Jackson’s peti-

tion for writ of certiorari. Jackson v. California, 450 U.S.

1035 (1981).

On August 10, 1981, Jackson filed a second habeas petition

in the California Supreme Court, alleging, among other

things, that the prosecution had suppressed evidence that Mik-

les and McFarland had been induced to testify against Jack-

son. The court issued an order to show cause and appointed

the Honorable Bernard S. Jefferson, Retired Presiding Justice

of the California Court of Appeal, to serve as a referee in a

special reference proceeding. Justice Jefferson was directed to

make findings on three issues:

Lewis, id. at 311. He also asserted that the trial court erred by denying his

pretrial motion to appoint a second attorney to assist in his defense, id. at

285; declining to give jury instructions for manslaughter, id. at 305; con-

ducting a hearing on his motion for mistrial outside of his presence, id. at

308; excluding Mikles’s prior federal conviction for impeachment pur-

poses, id. at 311; excluding four prospective jurors who declared they

would not impose the death penalty, id. at 313; and allowing his defense

attorney to rest without presenting any mitigating evidence during the pen-

alty phase without an explicit waiver by Jackson, id. at 313-14. Finally,

Jackson argued that the prosecutor committed misconduct by impermiss-

ibly commenting on his courtroom demeanor, id. at 304, and by failing to

disclose Mikles and McFarland as potential witnesses until shortly before

trial, id. at 307.

4

Jackson argued that his attorney was ineffective at the guilt phase for

failing to: “(1) investigate the case in a properly and timely manner; (2)

present a diminished capacity defense at trial; (3) object to certain adverse

evidence; and (4) deny defendant’s guilt during closing argument to the

jury.” People v. Jackson, 28 Cal. 3d at 288. Jackson also claimed ineffec-

tive assistance at the penalty phase based on his counsel’s failure to pre-

sent any mitigating evidence. Id. at 293.

902 JACKSON v. BROWN

(1) whether the admissions defendant made to two

jailhouse informants, Mark Mikles and Ronald

McFarland, deliberately were elicited from defen-

dant at the behest of law enforcement officials so as

to render the statements inadmissible at trial . . . ; (2)

whether the prosecution improperly failed to disclose

to the defense any inducements offered by state

agents to Mikles or McFarland for their testimony at

defendant’s trial; and (3) whether defendant’s trial

counsel failed to provide adequate representation

with respect to the special circumstance allegations

or the penalty phase of the trial.

In re Jackson, 3 Cal. 4th 578, 584 (1992).

On August 16, 1988, after taking testimony from eighteen

witnesses and receiving into evidence twenty-seven exhibits,

Justice Jefferson issued his first report, which made findings

as to the first and third questions. First, the referee found that

Mikles and McFarland had not impermissibly elicited Jack-

son’s statements at the behest of law enforcement. However,

he concluded that Jackson was denied effective assistance of

counsel at both the guilt and penalty phases of the trial. In the

penalty phase, defense attorney Veganes presented no evi-

dence on Jackson’s behalf and only interviewed three poten-

tial witnesses: Jackson’s father, grandmother, and aunt.

Justice Jefferson found that there were many other relatives

who could have provided mitigating evidence, including evi-

dence of “unconscionable” “physical and psychological

abuse” in Jackson’s childhood. Because the decision not to

call any mitigating witnesses was based on Veganes’s misun-

derstanding of the scope of rebuttal evidence, it could not be

considered a reasonable tactical decision. Similarly, at the

guilt phase, Veganes completely failed to investigate the

background of either Mikles or McFarland, despite his belief

that “the testimony of those two witnesses” was “the guts of

the Jackson case.” Had Veganes performed any investigation

of these jailhouse informants, he would have discovered that

JACKSON v. BROWN 903

Mikles was a former member of the Aryan brotherhood, that

Mikles and McFarland had each been offered governmental

assistance in exchange for testifying, and that the two wit-

nesses had been in contact in jail and had the opportunity to

collaborate to ensure consistency in their testimony. The ref-

eree concluded that these witnesses’ testimony was crucial to

the jury’s finding that Jackson committed the crime “with the

intent to cause death”; accordingly, Veganes’s ineffective

assistance prejudiced both the jury’s special circumstances

findings and the jury’s death verdict, although it did not affect

the underlying convictions.

On September 21, 1989, Justice Jefferson issued a supple-

mental report addressing the undisclosed inducements made

to Mikles and McFarland. He found that law enforcement

officers had promised Mikles that they would help him get a

pending six-year sentence reduced, as little time as possible

in an upcoming sentencing, and a pending parole violation

sentence reduced, although they did not promise any specific

results. Prosecutor Marin offered to write a letter to prison

authorities on McFarland’s behalf to help him serve his time

in Arizona, where his family lived. None of these induce-

ments was disclosed at trial; in fact, both witnesses falsely

testified that they had received no promises in exchange for

their testimony, other than the “protection” described by Mik-

les. Justice Jefferson concluded:

This was a clear case of concealment and a failure by

the prosecution to disclose to petitioner Jackson’s

lawyer, the inducements made to Mikles and McFar-

land. The disclosure to the jury of these inducements

could well have caused the Jackson jury to give little

or no credence to the damaging testimony of Mikles

and McFarland.

The California Supreme Court reviewed Justice Jefferson’s

reports and issued an opinion on August 31, 1992. In re Jack-

son, 3 Cal. 4th 578 (1992). The court agreed with the referee

904 JACKSON v. BROWN

that the prosecution improperly failed to disclose the promises

of assistance to Mikles and McFarland and that it failed to

correct the perjured testimony concerning these promises. Id.

at 594-97 (“Accordingly, we conclude that because the prose-

cution should have known of the false and misleading nature

of the informants’ testimony, the prosecution was under a

constitutional obligation to correct that testimony.”). How-

ever, the court concluded, in a 5-2 decision, that these consti-

tutional errors were not prejudicial because Jackson had

admitted to hitting Ott, and, at that time, Jackson knew that

Curtis had recently died from a similar beating. Id. at 598-99.

Therefore, “although defendant did not admit . . . that he acted

with the intent to cause Mrs. Ott’s death,” his statement “went

a long way toward proving the elements of the special circum-

stances finding.” Id. at 599. Moreover, the court pointed to the

testimony of other witnesses and the statements they attri-

buted to Jackson that “clearly established that defendant had

the requisite culpability.” Id. For example, Jackson apparently

referred to the victims as “ ‘two old bags [who] were a nui-

sance and . . . got what they deserved,’ ” id. (emphasis and

alteration in original), and stated that “ ‘[t]his is what I did,

that it was because I needed some money,’ ” id. (emphasis in

original). Accordingly, the court found that the errors did not

justify habeas relief as to either the special circumstances

findings or the death sentence. Id. at 599, 600. For the same

reasons, the court held that even if Veganes’s failure to inves-

tigate Mikles and McFarland was deficient, this deficiency

did not prejudice the special circumstances findings so as to

constitute ineffective assistance of counsel under the Sixth

Amendment. Id. at 604-05. Finally, the court agreed with Jus-

tice Jefferson that Veganes’s failure to investigate potential

mitigating evidence at the penalty phase was deficient perfor-

mance; however, it disagreed with the referee’s conclusion

that Jackson suffered prejudice. Id. at 615.

Jackson filed his first federal habeas petition on April 1,

1996. Because it alleged unexhausted claims, it was stayed

until Jackson exhausted his remedies in state court. On Sep-

JACKSON v. BROWN 905

tember 9, 1996, Jackson filed a third habeas petition in the

California Supreme Court, claiming, among other things, that

the prosecutor impermissibly failed to disclose Mikles’s psy-

chiatric reports. On February 23, 2000, the California

Supreme Court denied this third petition on the merits and on

various procedural grounds.

On March 31, 2000, Jackson filed an amended petition for

writ of habeas corpus in the federal district court. Agreeing

with Justice Jefferson’s reports, the district court found that

“the suppressed impeachment evidence was so extensive and

damning that if the jurors had heard it, Mikles’s and McFar-

land’s credibility would have been irreparably harmed, and

jurors would have given little or no credence to their testimo-

ny.” The district court agreed with the California Supreme

Court that the prosecutor’s errors did not undermine the con-

victions; however, it found that the jailhouse informants’ tes-

timony was central to the finding that Jackson acted with the

intent to cause death and therefore required overturning both

the jury’s special circumstances findings and the death sen-

tence. The district court, like the referee, also concluded that

Jackson had been denied ineffective assistance of counsel by

Veganes’s failure to investigate Mikles and McFarland at the

guilt phase and by his failure to present mitigating evidence

at the penalty phase. Accordingly, the district court granted

Jackson’s petition as to both the special circumstances find-

ings and the death sentence, but not as to the underlying con-

victions. The parties timely appealed the district court’s

judgment.

The State does not contest the district court’s order vacat-

ing the sentence of death; however, it challenges the grant of

relief as to the special circumstances findings. First, it argues

that the district court’s legal findings of prosecutorial error

relied on “new rules” of criminal procedure and hence were

barred by Teague v. Lane, 489 U.S. 288 (1989). Second, it

argues that even if these findings of prosecutorial error were

not Teague-barred, the undisclosed offers and promises were

906 JACKSON v. BROWN

immaterial and any prosecutorial error was harmless. Third,

it argues that Jackson’s claim regarding the undisclosed psy-

chiatric reports was procedurally defaulted, and that, either

way, the failure to disclose did not constitute reversible error.

Finally, the State contends that trial counsel’s failure to inves-

tigate Mikles and McFarland was not deficient and, in any

event, was not prejudicial.

Jackson cross-appeals the partial denial of relief as to his

convictions. The district court heard numerous claims chal-

lenging the convictions but granted a certificate of appeala-

bility only as to whether (1) Jackson’s defense counsel’s

repeated racially derogatory remarks during trial deprived him

of a fair trial; (2) defense counsel impermissibly compelled

him to stand trial in jail clothing despite his desire to wear

civilian apparel; (3) the trial court erred in admitting irrele-

vant and highly prejudicial evidence of Ott’s sexual assault

and his defense attorney was ineffective in failing to object to

this evidence; (4) the introduction of prerecorded testimony

by Larry Rushing and Debria Lewis violated his Sixth

Amendment right to confrontation; and (5) the cumulative

effect of these errors rendered his trial fundamentally unfair.

II. STANDARD OF REVIEW

Because Jackson’s federal petition for writ of habeas cor-

pus was filed before the effective date of the Anti-Terrorism

and Effective Death Penalty Act (AEDPA), the general

AEDPA provisions are inapplicable. See Lindh v. Murphy,

521 U.S. 320, 327 (1997). However, the certificate of

appealability requirements of AEDPA do apply, Slack v.

McDaniel, 529 U.S. 473, 481-82 (2000); therefore, Jackson’s

appeal is limited to those claims that the district court certified

for appeal. 28 U.S.C. § 2253(c).5

5

We did not expand the certificate of appealability to include issues that

the district court declined to certify.

JACKSON v. BROWN 907

We review the district court’s decision to grant habeas

relief de novo. Alcala v. Woodfood, 334 F.3d 862, 868 (9th

Cir. 2003). We review de novo questions of law and mixed

questions of law and fact, whether decided by the district

court or the state courts. Hovey v. Ayers, 458 F.3d 892, 900

(9th Cir. 2006); Silva v. Woodford, 279 F.3d 825, 835 (9th

Cir. 2002); Williams v. Taylor, 529 U.S. 362, 400 (2000)

(O’Connor, J., concurring) (“[Pre-AEDPA], a federal habeas

court owed no deference to a state court’s resolution of such

questions of law or mixed questions.”). The district court’s

factual findings are reviewed for clear error. We therefore

accept its findings “absent a definite and firm conviction that

a mistake has been committed.” Hovey, 458 F.3d at 900

(internal quotation marks omitted). State court factual find-

ings are entitled to a presumption of correctness, subject to

eight exceptions enumerated in the previous version of 28

U.S.C. § 2254(d). Palmer v. Estelle, 985 F.2d 456, 458 (9th

Cir. 1993).6

6

The pre-AEDPA version of 28 U.S.C. § 2254(d) applied the presump-

tion of correctness, “unless the applicant shall establish or it shall other-

wise appear, or the respondent shall admit”:

(1) that the merits of the factual dispute were not resolved in

the State court hearing;

(2) that the factfinding procedure employed by the State court

was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the

State court hearing;

(4) that the State court lacked jurisdiction of the subject matter

or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in

deprivation of his constitutional right, failed to appoint counsel to

represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate

hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in

the State court proceeding;

(8) or unless that part of the record of the State court proceeding

in which the determination of such factual issue was made, perti-

908 JACKSON v. BROWN

Habeas relief is usually warranted only if the alleged con-

stitutional errors had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation

marks omitted). However, certain types of claims are ana-

lyzed under their own harmless error standards, which can

render Brecht analysis unnecessary. See, e.g., Kyles v. Whit-

ley, 514 U.S. 419, 435 (1995) (noting that Brecht analysis is

unnecessary for Brady claims made on habeas); Hayes v.

Brown, 399 F.3d 972, 984-85 (9th Cir. 2005) (en banc) (same

for Napue claims).

III. THE STATE’S APPEAL

We agree with the district court and the California Supreme

Court that the prosecution suppressed information favorable

to the defense in violation of Brady v. Maryland, 373 U.S. 83

(1963), and knowingly failed to correct false testimony in vio-

lation of Napue v. Illinois, 360 U.S. 264 (1959). Moreover,

the district court correctly concluded that “the suppressed

impeachment evidence was so extensive and damning that if

the jurors had heard it, Mikles’s and McFarland’s credibility

would have been irreparably impaired.” Further, we agree

with both the district court and state court referee Justice Jef-

ferson that the testimony of these jailhouse informants was

material to the jury’s finding that Jackson acted “with the

intent to cause death.” Therefore, these Brady and Napue

errors entitle Jackson to habeas relief with respect to the

jury’s special circumstances findings and the resulting sen-

tence of death. Accordingly, we need not reach the question

whether Jackson’s defense attorney’s failure to investigate

nent to a determination of the sufficiency of the evidence to sup-

port such factual determination, is produced as provided for

hereinafter, and the Federal court on a consideration of such part

of the record as a whole concludes that such factual determina-

tion is not fairly supported by the record.

28 U.S.C. § 2254(d) (1994).

JACKSON v. BROWN 909

Mikles and McFarland constituted ineffective assistance of

counsel.

The district court correctly held the prosecution account-

able for four distinct Brady and Napue errors. First, the prose-

cutor failed to disclose that he had promised to write a letter

on McFarland’s behalf recommending that he be allowed to

serve his sentence in Arizona, where his family lived, rather

than in California. Second, the prosecutor failed to correct

McFarland’s perjured testimony stating that he had received

no inducements to testify. Third, the prosecutor failed to dis-

close that, in exchange for Mikles’s testimony, law enforce-

ment officers had promised to help him obtain a reduction in

his current sentence and receive lower sentences in his pend-

ing cases. Finally, the prosecutor failed to correct Mikles’s

perjured testimony regarding these promises.7

A. Prosecution’s failure to disclose promises made to

McFarland

[1] The district court found, and the State concedes, that

Deputy District Attorney Marin promised McFarland he

would write a letter on McFarland’s behalf recommending

that he be allowed to serve his California prison sentence in

Arizona near his family in exchange for his cooperation in

Jackson’s trial. The State further concedes that this promise

was not disclosed to the defense. The district court concluded

that the failure to disclose the prosecution’s promise was

Brady error.

[2] In Brady v. Maryland, 373 U.S. 83 (1963), the Court

held that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process

7

The district court also found that the prosecutor had improperly failed

to disclose psychiatric reports that revealed Mikles’s drug abuse and psy-

chological disorders. We need not reach this claim because it is unneces-

sary to our holding.

910 JACKSON v. BROWN

where the evidence is material either to guilt or to punish-

ment, irrespective of the good faith or bad faith of the prose-

cution.” Id. at 87. There are three essential components to a

Brady claim: (1) “The evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is

impeaching,” (2) “that evidence must have been suppressed

by the State,” and (3) “prejudice must have ensued.” Strickler

v. Greene, 527 U.S. 263, 281-82 (1999).

[3] Here, there is no doubt that the first two elements are

met. The undisclosed promise was relevant to impeach

McFarland’s credibility and therefore was favorable to Jack-

son. See id. Moreover, the prosecution’s offer was not dis-

closed to the defense, so it is deemed suppressed. See Benn

v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002) (“[T]he

terms ‘suppression,’ ‘withholding,’ and ‘failure to disclose’

have the same meaning for Brady purposes.”). All that

remains, therefore, is to determine whether Jackson suffered

prejudice as a result of the prosecution’s failures to comply

with its constitutional obligations.

To determine whether prejudice exists, we look to the

materiality of the suppressed evidence. Hovey v. Ayers, 458

F.3d 892, 916 (9th Cir. 2006). Evidence is material “if there

is a reasonable probability that, had the evidence been dis-

closed to the defense, the result of the proceeding would have

been different.” United States v. Bagley, 473 U.S. 667, 682

(1985). We may find a “reasonable probability” even where

the remaining evidence would have been sufficient to convict

the defendant. Strickler, 527 U.S. at 290. Moreover, we may

find a “reasonable probability” without finding that the out-

come would more likely than not have been different. Kyles

v. Whitley, 514 U.S. 419, 434 (1995). Instead, “[a] ‘reasonable

probability’ of a different result [exists] when the govern-

ment’s evidentiary suppression ‘undermines confidence in the

outcome of the trial.’ ” Id. (quoting Bagley, 473 U.S. at 678).

The materiality of suppressed evidence is “considered col-

lectively, not item by item.” Kyles, 514 U.S. at 436. Here,

JACKSON v. BROWN 911

Jackson asserts numerous Brady and Napue violations. There-

fore, rather than analyze whether the failure to disclose

Marin’s promise was material on its own, “[w]e evaluate . . .

[the] cumulative effect [of the prosecutorial errors] for pur-

poses of materiality separately and at the end of the discus-

sion.” Id. at 436 n.10.

B. Subornation of perjury and failure to correct

McFarland’s false testimony

[4] At trial, Marin asked McFarland, “And is it true that no

one promised you anything in exchange for your testimony

against Mr. Jackson?” McFarland answered, “Yes, that’s

right.” In light of Marin’s promise to help McFarland serve

out his sentence closer to his family, this testimony was false.

Moreover, Marin knew that the testimony was false because

he himself had made the promise; nevertheless, he failed to

correct the perjury.

[5] The Supreme Court has long held that a conviction

obtained using knowingly perjured testimony violates due

process. Mooney v. Holohan, 294 U.S. 103, 112 (1935). In

Napue v. Illinois, 360 U.S. 264 (1959), the Court made clear

that this prohibition against the use of false testimony applies

even when the testimony in question was relevant only to the

witness’s credibility. Id. at 269. A claim under Napue will

succeed when “(1) the testimony (or evidence) was actually

false, (2) the prosecution knew or should have known that the

testimony was actually false, and (3) the false testimony was

material.” Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)

(en banc) (internal quotation marks and alteration omitted).

Again, the first two elements are undoubtedly met here, so the

only question is whether McFarland’s perjured testimony was

material.

[6] As in the Brady context, the basic question is “ ‘whether

. . . [the defendant] received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.’ ” Hall v. Dir. of

912 JACKSON v. BROWN

Corr., 343 F.3d 976, 983-84 (9th Cir. 2003) (per curiam)

(considering a Napue claim) (quoting Kyles, 514 U.S. at 434

(considering a Brady claim)). Because each additional Napue

and Brady violation further undermines our confidence in the

decision-making process, we analyze the claims “collective-

ly,” Kyles, 514 U.S. at 436, and proceed to consider the other

asserted prosecutorial violations.

C. Prosecution’s failure to disclose promises made to

Mikles

[7] The California Supreme Court and the district court

each found that Mikles was provided significant inducements

in exchange for his testimony against Jackson. In re Jackson,

3 Cal. 4th 578, 592-93 (1992). The state court referee found

that when Mikles first approached the sheriff’s and police

departments, he conditioned his cooperation on assistance in

“(1) having a six-year sentence, previously imposed on him

in Long Beach, recalled and reduced, (2) receiving as little

time, or, if possible, no time, on a number of charges then

pending against him in Norwalk, and (3) having a potential

forty-two-month sentence for a federal parole violation

reduced or eliminated.” Id. at 592. In return, members of the

sheriff’s and police departments promised that “they would

bring his cooperation to the attention of the judges and deputy

district attorneys involved in his cases and use their best

efforts to help him achieve his objectives,” although they

could not guarantee any specific results. Id. After Mikles’s

testimony, these officers kept their promises and made numer-

ous favorable statements on behalf of Mikles in proceedings

against him. Id. at 593. In the end, Mikles received everything

that he had requested: He was released from his six-year sen-

tence, his parole hold was lifted, fifteen pending charges

against him were dropped entirely, and he received a proba-

tionary sentence with no time in custody on a pending armed

robbery conviction. Id.

[8] The State concedes that these inducements were offered

and that they were not disclosed to the defense, but claims

JACKSON v. BROWN 913

that the prosecutor was never made aware of them. The

Supreme Court has made abundantly clear, however, that the

prosecutor’s duty to disclose evidence favorable to the

accused extends to information known only to the police.

Kyles v. Whitley, 514 U.S. 419, 438 (1995). Nevertheless, the

State argues that Kyles’s holding in 1995 created a new rule

of criminal procedure and that Teague v. Lane, 489 U.S. 288

(1989), prohibits its application to this case.

Teague stands for the proposition that “new constitutional

rules of criminal procedure will not be applicable to those

cases which have become final before the new rules are

announced.” Id. at 310. “Under the Teague framework, an old

rule applies both on direct and collateral review, but a new

rule is generally applicable only to cases that are still on direct

review.” Whorton v. Bockting, 127 S. Ct. 1173, 1180 (2007).

Teague explains how we determine whether a “new” constitu-

tional rule of criminal procedure is inapplicable to a given

case:

First, the court must determine when the defendant’s

conviction became final. Second, it must ascertain

the “legal landscape as it then existed,” and ask

whether the Constitution, as interpreted by the prece-

dent then existing, compels the rule. That is, the

court must decide whether the rule is actually “new.”

Finally, if the rule is new, the court must consider

whether it falls within either of the two exceptions to

nonretroactivity.

Beard v. Banks, 542 U.S. 406, 411 (2004) (citations omitted).

Jackson’s case became final on direct appeal when the United

States Supreme Court denied his petition for a writ of certio-

rari on March 30, 1981. Jackson v. California, 450 U.S. 1035

(1981). Thus, we must examine the legal landscape as of that

date “to determine whether existing precedent compelled a

finding that the rule[s] at issue ‘[were] required by the Consti-

tution.’ ” Hayes v. Brown, 399 F.3d 972, 983 (9th Cir. 2005)

914 JACKSON v. BROWN

(en banc) (quoting Lambrix v. Singletary, 520 U.S. 518, 527

(1997)).8

[9] Kyles may have been the first Supreme Court case to

find a Brady violation where the suppressed evidence was

known only to the police, but it did not create a new rule of

criminal procedure. In Kyles itself, the Supreme Court

observed that failing to hold the State “accountable . . . for

evidence known only to police investigators and not to the

prosecutor . . . would . . . amount to a serious change of

course from the Brady line of cases.”9 514 U.S. at 438.

Indeed, the principle underlying this unexceptional holding

dates back, at the latest, to the Supreme Court’s decision in

Giglio v. United States, 405 U.S. 150 (1972).

In Giglio, both Napue and Brady errors were at issue. A

federal prosecutor offered immunity to a key witness in return

for grand jury and trial testimony. Id. at 152. After the witness

testified before the grand jury, but before trial, the case was

transferred to another prosecutor who was not aware of the

immunity agreement. The witness testified for the government

at trial, stating that he had not received any promises that he

would not be indicted. Id. at 151-52. Writing for the Court,

Chief Justice Burger found reversible error under Napue and

Brady: “[W]hether the nondisclosure was a result of negli-

gence or design, it is the responsibility of the prosecutor. The

prosecutor’s office is an entity and as such it is the spokesman

8

The State urges that in analyzing whether a rule is new, we should con-

sider only Supreme Court cases. We have rejected this argument, as has

the Supreme Court. See Caspari v. Bohlen, 510 U.S. 383, 395 (1994)

(“Constitutional law is not the exclusive province of the federal courts,

and in the Teague analysis the reasonable views of state courts are entitled

to consideration along with those of federal courts.”); Leavitt v. Arave, 383

F.3d 809, 819 (9th Cir. 2004) (“[W]e have held that circuit court holdings

suffice to create a clearly established rule of law under Teague.”) (quota-

tion omitted).

9

Brady, of course, was decided in 1963, well before Jackson was

indicted.

JACKSON v. BROWN 915

for the Government. A promise made by one attorney must be

attributed, for these purposes, to the Government.” Id. at 154

(citing Restatement (Second) of Agency § 272). Giglio’s

focus on the responsibility of the prosecutor to investigate all

promises made on behalf of the government extends to prom-

ises made by the police, who also make any such promises as

spokespersons for the government, and for whom the prosecu-

tor bears responsibility.

Subsequent cases between Giglio and Kyles also make clear

that Kyles’s holding did not create a new rule of criminal pro-

cedure. In 1978, we held that:

The prosecutor is responsible for the nondisclosure

of assurances made to his principal witnesses even if

such promises by other government agents were

unknown to the prosecutor. Since the investigative

officers are part of the prosecution, the taint on the

trial is no less if they, rather than the prosecutor,

were guilty of nondisclosure.

United States v. Butler, 567 F.2d 885, 891 (9th Cir. 1978) (cit-

ing Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964) (cit-

ing Pyle v. Kansas, 317 U.S. 213 (1942))). A year later, the

Fifth Circuit agreed, echoing the sentiments expressed in

Giglio, when it held that “[t]he duty [of] disclosure is that of

the state, which ordinarily acts through the prosecuting attor-

ney; but if he too is the victim of police suppression of the

material information, the state’s failure is not on that account

excused.” Freeman v. Georgia, 599 F.2d 65, 69-70 (5th Cir.

1979) (quoting Barbee, 331 F.2d at 847). Later, in United

States v. Steel, 759 F.2d 706 (9th Cir. 1985), we reiterated that

“[b]ecause the government was required to furnish all excul-

patory evidence under the doctrine of Brady . . . , and because

investigative officers are part of the prosecution [under] But-

ler, . . . there was indeed a negligent nondisclosure.” Id. at

714. As in Butler, we never suggested that this rule was in any

916 JACKSON v. BROWN

way novel, and the State has cited not a single case plausibly

suggesting the opposite.10

Finally, it is instructive that in Jackson’s own state habeas

proceedings, the California Supreme Court rejected the

State’s argument that the prosecutor did not have a duty to

disclose offers unknown to the prosecutor that were made by

the police and sheriff’s department. See In re Jackson, 3 Cal.

4th 578, 595-96 (1992) (discussing, inter alia, Brady, Giglio,

and Barbee). If the California Supreme Court felt compelled

to follow such a rule in 1992, three years before Kyles, this

suggests that the rule had been in existence well before 1995.

[10] Therefore, on March 30, 1981, the United States Con-

stitution, as interpreted by Brady and Giglio, compelled pros-

ecutors to disclose evidence favorable to the accused, even

when that evidence was known only to the police and not to

the prosecutor. Thus, Kyles did not declare a new rule of con-

stitutional criminal procedure and Teague does not bar its

application.

The prosecution failed to disclose evidence favorable to

Jackson, so the first two Brady elements are met. Whether

prejudice ensued from this suppression will be addressed con-

sidering the prosecutorial errors “collectively.” Kyles, 514

U.S. at 436.

D. Failure to correct Mikles’s perjured testimony

[11] At trial, the prosecutor asked Mikles whether “anyone

—when I say ‘anyone,’ I include sheriffs, police, District

Attorneys; in other words, anyone in law enforcement—did

anyone . . . promise you anything in exchange for your testify-

10

It is also worth mentioning that in Kyles itself, the State of Louisiana

abandoned this argument altogether and conceded at oral argument that it

was “ ‘held to a disclosure standard based on what all State officers at the

time knew.’ ” 514 U.S. at 438 n.11.

JACKSON v. BROWN 917

ing about the conversation that Jackson had with you?” Mik-

les responded, “Just a lot of protection.” The record amply

demonstrates, however, that Mikles was offered much more

than mere “protection.” Therefore, we agree with the Califor-

nia Supreme Court and the district court that Mikles’s state-

ment was false and misleading.

The State contends that Napue did not require the prosecu-

tion to correct Mikles’s perjury because the prosecutor him-

self was unaware of the promises made by the police and

sheriff’s department. Further, it argues that to hold Napue

applicable in such a case would create a new rule barred by

Teague.

[12] Again, we disagree with the State’s analysis. Napue

applies whenever a prosecution “ ‘knew or should have

known that the testimony was false.’ ” Hayes v. Brown, 399

F.3d 972, 984 (9th Cir. 2005) (en banc) (quoting United

States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)). As

described above, the prosecutor has a clear Brady obligation

to investigate whether the police have evidence favorable to

the defendant. Kyles, 514 U.S. at 438 (“[A]ny argument for

excusing a prosecutor from disclosing what he does not hap-

pen to know about boils down to a plea to substitute the police

for the prosecutor, and even for the courts themselves, as the

final arbiters of the government’s obligation to ensure fair tri-

als.”); Giglio, 405 U.S. at 154 (“[W]hether the nondisclosure

was a result of negligence or design, it is the responsibility of

the prosecutor.”). If the prosecutor has a duty to investigate

and disclose favorable evidence known only to the police, he

“should know” when a witness testifies falsely about such

evidence. Accordingly, we agree with the California Supreme

Court’s conclusion that “the prosecution should have known

of the false and misleading nature of the informants’ testimo-

ny,” and therefore “the prosecution was under a constitutional

obligation to correct that testimony.” In re Jackson, 3 Cal. 4th

at 597.

918 JACKSON v. BROWN

The State’s attempt to characterize this fundamental princi-

ple as a “new rule” is unavailing. In Napue itself, the Supreme

Court made clear: “[I]t is established that a conviction

obtained through use of false evidence, known to be such by

representatives of the State, must fall under the Fourteenth

Amendment. The same result obtains when the State,

although not soliciting false evidence, allows it to go uncor-

rected when it appears.” 360 U.S. 264, 269 (1959) (emphasis

added) (internal citations omitted). Further, in Giglio, the

Court explicitly found a Napue violation when the prosecutor

lacked personal knowledge of the perjury. As described

above, Giglio involved one prosecutor’s unknowing failure to

correct false testimony that disavowed promises made by

another prosecutor. 405 U.S. at 155. The Court emphasized

that, “The prosecutor’s office is an entity and as such it is the

spokesman for the Government. A promise made by one

attorney must be attributed, for these purposes, to the Govern-

ment.” Id. at 154. The Court concluded that “the due process

requirements enunciated in Napue and the other cases cited

earlier require a new trial . . . .” Id. at 155. Napue and Giglio

make perfectly clear that the constitutional prohibition on the

“knowing” use of perjured testimony applies when any of the

State’s representatives would know the testimony was false.

[13] The California Supreme Court correctly concluded

that Jackson’s prosecutor should have known of Mikles’s per-

jury and had a constitutional obligation to correct the false

testimony. In re Jackson, 3 Cal. 4th at 597. In 1981, Napue

and Giglio would have compelled the court to come to the

same conclusion, so Teague is not implicated.

E. Materiality

[14] A jury’s finding should be overturned as a result of

Brady and Napue violations if and only if those violations are

material.11 The fundamental question in the materiality analy-

11

Once Brady or Napue claims are deemed material, there is no need for

further harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619

(1993). Kyles, 514 U.S. at 436; Hayes, 399 F.3d at 984-85.

JACKSON v. BROWN 919

sis is whether, despite the prosecution’s errors, the defendant

“received . . . a trial resulting in a verdict worthy of confi-

dence.” Kyles, 514 U.S. at 434 (1995). Because each addi-

tional Napue and Brady violation further undermines our

confidence in the jury’s decision, we analyze the errors “col-

lectively.” See id. at 436.

[15] The materiality analysis proceeds differently for Brady

and Napue claims. Whereas a Brady violation is material

when “there is a reasonable probability that . . . the result of

the proceeding would have been different,” Bagley, 473 U.S.

at 682 (emphasis added), a Napue violation requires that the

conviction be set aside whenever there is “any reasonable

likelihood that the false testimony could have affected the

judgment of the jury.” Hayes v. Brown, 399 F.3d 972, 985

(9th Cir. 2005) (en banc) (emphasis added) (internal quotation

marks omitted).12 We have gone so far as to say that “ ‘if it

is established that the government knowingly permitted the

introduction of false testimony reversal is virtually automat-

ic.’ ” Id. at 978 (quoting United States v. Wallach, 935 F.2d

445, 456 (2d Cir. 1991)). Nonetheless, Napue does not create

a “per se rule of reversal.” Id. at 984.

Although we must analyze Brady and Napue violations

“collectively,” the difference in the materiality standards

poses an analytical challenge. The Napue and Brady errors

cannot all be collectively analyzed under Napue’s “reasonable

likelihood” standard, as that would overweight the Brady vio-

lations. On the other hand, they cannot be considered in two

separate groups, as that would fail to capture their combined

12

This distinction between Brady materiality and Napue materiality

seems to reflect a sentiment that the prosecution’s knowing use of perjured

testimony will be more likely to affect our confidence in the jury’s deci-

sion, and hence more likely to violate due process, than will a failure to

disclose evidence favorable to the defendant. It likely also acknowledges

that every Napue claim has an implicit accompanying Brady claim: When-

ever the prosecution knowingly uses false testimony, it has a Brady obli-

gation to disclose that witness’s perjury to the defense.

920 JACKSON v. BROWN

effect on our confidence in the jury’s decision. To resolve this

conflict, we first consider the Napue violations collectively

and ask whether there is “any reasonable likelihood that the

false testimony could have affected the judgment of the jury.”

Hayes, 399 F.3d at 985 (emphasis added). If so, habeas relief

must be granted. However, if the Napue errors are not mate-

rial standing alone, we consider all of the Napue and Brady

violations collectively and ask whether “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Bagley,

473 U.S. at 682 (emphasis added) (internal quotation marks

omitted); United States v. Zuno-Arce, 25 F. Supp. 2d 1087,

1117 (C.D. Cal. 1998) (applying a two-step materiality analy-

sis to combined Brady and Napue claims), aff’d, 339 F.3d 886

(9th Cir. 2003). At both stages, we must ask whether the

defendant “received . . . a trial resulting in a verdict worthy

of confidence.” Kyles, 514 U.S. at 434.

[16] Jackson does not contend that the prosecutorial errors

surrounding the informants’ testimony undermine the validity

of his convictions; instead, he claims, and the district court

found, that the Brady and Napue violations were material with

respect to the jury’s special circumstances findings. We agree

with the district court that Jackson is entitled to habeas relief

as to the special circumstances findings. Because we conclude

that the Napue violations themselves create a “reasonable

likelihood that the false testimony could have affected” the

jury’s findings that Jackson acted with the intent to cause

death, we need not separately address the materiality of the

Brady violations.

The State argues that the Napue violations were immaterial,

because even if the prosecutor had corrected the false testi-

mony, the truth would have done little to impeach the infor-

mants’ credibility. First, as to McFarland, the State suggests

that the promise to him was made after McFarland initially

spoke to the police about Jackson. Moreover, the jury was

already presented with some evidence that McFarland’s attor-

JACKSON v. BROWN 921

ney had separately tried to use his cooperation against Jack-

son to obtain a reduced sentence. Finally, the State points out

that the prosecution never argued for a finding that McFarland

was credible based on a lack of inducement.

The State underestimates the impeachment value that the

prosecutor’s correction of McFarland’s testimony could have

served. Both the district court and the state court referee

found that McFarland would likely have been thoroughly dis-

credited. A jury could easily find that McFarland, facing an

unknown sentence for a serious crime, would greatly appreci-

ate the chance to serve out his sentence close to his family and

hence would find significant value in the prosecutor’s prom-

ise. Moreover, although the witness had been cross-examined

about his own attempts to benefit from his cooperation, evi-

dence of an explicit promise of assistance by the trial prosecu-

tor likely would have carried far greater weight than any

speculative benefit McFarland might have thought he could

achieve on his own. Moreover, that McFarland was willing to

perjure himself in order to cover up prosecutor Marin’s prom-

ise would surely have called into question the truth of all of

his testimony. Finally, even if Marin never reemphasized this

fact in his later argument, the false impression that McFarland

was a Good Samaritan, volunteering to help the prosecution,

had already been made.

We similarly reject the State’s arguments that Mikles’s

revealed perjury would have had little impact on the jury.

Although the jury was aware that Mikles had pending robbery

charges and it could have speculated that Mikles was cooper-

ating to try to get a better deal, this speculation pales in com-

parison to the reality that law enforcement officers had

actually promised to use their best efforts to get Mikles’s

then-current sentence reduced, get his then-pending charges

dropped, and get his federal parole hold lifted. The facts of

these promises, as opposed to juror speculation as to the tim-

ing of Mikles’s decision to cooperate with the prosecution,

would demonstrate to the jury that Mikles was not an altruis-

922 JACKSON v. BROWN

tic volunteer stepping forward to testify truthfully. Moreover,

his obvious willingness to lie under oath to keep the promises

secret would cast doubt on his entire testimony.

Although some of the facts presented in Mikles’s and

McFarland’s testimony were corroborated by other witnesses

and by the physical evidence, the corroborated facts were

extraneous to the critical predicate finding that the acts caus-

ing death were committed “with the intent to cause death.”

Cal. Penal Code § 190.2 (1977). Mikles and McFarland were

the only two witnesses who testified that Jackson had admit-

ted to personally sexually assaulting and killing Ott. Most of

the relevant facts that Mikles and McFarland described were

unrelated to Jackson’s alleged “intent to kill” and were in fact

corroborated by Jackson himself in his admissions to the

police. Therefore, the jailhouse informants’ ability to regurgi-

tate these corroborated tidbits tells us, at most, that Jackson

discussed the crime with them; it tells us nothing about

whether Jackson was the primary perpetrator. Correcting the

informants’ perjury would have shown that each of these wit-

nesses had a strong incentive to lie in order to secure Jack-

son’s conviction. Each would have known that his story

would be better received by the trial prosecutor the more it

incriminated Jackson. The promises of assistance thus gave

both McFarland and Mikles a strong incentive to lie about

exactly that part of the testimony that was most crucial to the

special circumstances finding that Jackson acted with the “in-

tent to cause death.”

The State asserts that the “intent to cause death” predicate

could have been inferred from the fact that Ott was strangled

and that Jackson had allegedly told Debria Lewis that “[i]f she

had been still, she would not have been choked to death.” It

would read intent into Jackson’s alleged statements that

“[t]his is what I done” and that the “two old bags were a nui-

sance and got what they deserved.”

We do not disagree that inferences might have been drawn

from these statements from which a jury possibly could have

JACKSON v. BROWN 923

found an “intent to cause death” even without Mikles and

McFarland; however, that is not the proper inquiry. Instead,

we must ask whether there exists “any reasonable likelihood

that the false testimony could have affected the judgment of

the jury.” Hayes, 399 F.3d at 984 (emphasis added) (internal

quotation marks omitted).

In many ways, this case resembles Hayes, where we, sitting

en banc, granted habeas relief because the prosecution made

a secret deal with a key witness and allowed the witness to

falsely deny the deal in his testimony. Id. at 988. We found

materiality, noting that “[w]ithout the [witness’s] testimony

. . . , an entirely different trial would have occurred.” Id. at

987. After reiterating that the “[d]eliberate deception of a

judge and jury is ‘inconsistent with the rudimentary demands

of justice,’ ” id. at 978 (quoting Mooney v. Holohan, 294 U.S.

103, 112 (1935)), we found that the “due process violations

ha[d] undermined our confidence in the verdict,” id. at 988.

Here, Mikles and McFarland were the only witnesses to

describe Jackson admitting to personally committing the mur-

ders. The special circumstances findings did not require that

he actually commit the acts (it was sufficient that he “physi-

cally aided” their commission, Cal. Penal Code § 190.2(c)

(1977)); nonetheless, it is clear that the jury would be far

more likely to find the requisite “intent to cause death” if it

believed that Jackson had personally beat on and sexually

assaulted Ott than if it believed only that he was present at the

scene of the acts. The district court correctly ruled that the

remainder of the State’s evidence was “consistent with [Jack-

son’s] participation in the attack on Ott, but . . . at best weak

evidence that [he] intended to cause her death.” As in Hayes,

without Mikles’s and McFarland’s testimony “an entirely dif-

ferent trial would have occurred” with regard to the special

circumstances findings. 399 F.3d at 987.

[17] Mikles and McFarland were the two key witnesses for

the finding of intent to cause death, and, as described above,

924 JACKSON v. BROWN

the prosecution’s solicitation of perjured testimony bolstered

their credibility, whereas the truthful testimony would have

substantially impeached it. We conclude that there is a “rea-

sonable likelihood that the false testimony could have affected

the judgment of the jury.” Id. at 984 (internal quotation marks

omitted). In light of the false testimony, we cannot be sure

that the defendant “received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Hall v. Dir. of

Corr., 343 F.3d 976, 984 (9th Cir. 2003) (per curiam) (inter-

nal quotation marks omitted). Under these circumstances,

Napue requires that we affirm the district court’s partial grant

of habeas relief as to the jury’s special circumstances find-

ings.

IV. JACKSON’S CROSS-APPEAL

We, like the district court, having considered each of the

claims as to which it granted Jackson a certificate of appeala-

bility, conclude Jackson is not entitled to habeas relief as to

his underlying convictions. Several of Jackson’s claims are

Teague-barred. The remaining errors, if they occurred at all,

are harmless: The evidence supporting Jackson’s guilt of the

offenses of conviction is overwhelming, so he cannot demon-

strate that the alleged errors had a “substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation

marks omitted).

A. Counsel’s Racist Remarks

Jackson claims that his defense counsel’s repeated racial

references and derogatory remarks about Jackson and African

Americans impermissibly injected race into the proceeding in

violation of his Fourteenth Amendment right to a fair trial. It

is true that Veganes made numerous references to race

throughout the trial, from voir dire up through his penalty

stage closing argument. The district court addressed Jackson’s

claim only briefly, stating: “Counsel’s guilt phase closing

JACKSON v. BROWN 925

argument, including his racial references, was reasonable

under the circumstances.”

We need not consider whether Veganes’s statements were

reasonable, because Jackson’s claim depends on an initial,

and ultimately fatal, proposition that the acts of a court-

appointed defense counsel constitute state action. The Four-

teenth Amendment’s right to due process only protects dis-

crimination that results from state action. Shelley v. Kraemer,

334 U.S. 1, 13 (1948) (“That Amendment erects no shield

against merely private conduct, however discriminatory or

wrongful.”). Because prosecutors are state actors, “[t]he Con-

stitution prohibits racially biased prosecutorial arguments.”

McClesky v. Kemp, 481 U.S. 279, 309 n.30 (1987) (emphasis

added) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)). However, the Supreme Court has held that “a public

defender does not act under color of state law when perform-

ing a lawyer’s traditional functions to a defendant in a crimi-

nal proceeding.” Polk County v. Dodson, 454 U.S. 312, 322

n.13, 325 (1981) (emphasis added) (noting that when per-

forming these traditional functions “a public defender is not

acting on behalf of the State; he is the State’s adversary”).13

Veganes’s contested statements—made during voir dire

juror questioning and closing arguments—likely fall within

the defense lawyer’s “traditional functions”; moreover, even

if we were inclined to hold otherwise, Teague would prohibit

applying such a rule to Jackson’s case. Dodson was the first

Supreme Court case to consider whether public defenders

acted under color of state law, and it cast into serious doubt

13

In Georgia v. McCollum, the Court created an exception to the general

rule set forth in Dodson, holding that “a criminal defendant’s exercise of

a peremptory challenge constitutes state action for purposes of the Equal

Protection Clause.” 505 U.S. 42, 50 (1992). The Court distinguished Dod-

son by noting that “[i]n exercising a peremptory challenge, a criminal

defendant is wielding the power to choose a quintessential governmental

body—indeed, the institution of government on which our judicial system

depends.” Id. at 54.

926 JACKSON v. BROWN

the notion that a court-appointed counsel’s derogatory state-

ments could be considered state action under the Fourteenth

Amendment. 454 U.S. 312. Dodson was decided several

months after Jackson’s case became final; however, it noted

that prior to its decision, the federal circuits were strongly

divided on the state action issue. Id. at 317 n.4 (“The Courts

of Appeals for the Seventh and Eighth Circuits have held that

public defenders do act under color of state law in their repre-

sentation of indigent defendants. The Fifth and the Tenth Cir-

cuits have held that they do not. The Third and Ninth Circuits

have supported the latter position in dicta . . . .” (internal cita-

tions omitted)). In light of the Supreme Court’s silence and

the disagreement among the federal circuits, we cannot say

that the precedent existing on March 30, 1981, would have

compelled the California Supreme Court to find that Veg-

anes’s conduct constituted state action. See Beard v. Banks,

542 U.S. 406, 411 (2004). Therefore, Teague precludes apply-

ing such a rule in this case. Id. at 411.14

[18] On appeal, Jackson does not argue that Veganes’s rac-

ist statements constituted ineffective assistance of counsel and

has failed to properly raise any such claim. In the district

court, Claim 5 of Jackson’s habeas petition, which was certi-

fied for this appeal, was entitled “Trial counsel provided inef-

fective assistance of counsel and deprived petitioner of a fair

14

Neither of Teague’s exceptions is applicable here. A rule that certain

acts of state-appointed counsel constituted state action would not “for-

bid[ ] punishment of certain primary conduct [n]or . . . prohibit[ ] a certain

category of punishment for a class of defendants because of their status or

offense.” Beard, 542 U.S. at 416 (internal quotation marks omitted). Nei-

ther would such a rule fall within the “extremely narrow” class of “water-

shed rules of criminal procedure.” Schriro v. Summerlin, 542 U.S. 348,

352 (2004). To fit within that exception, “the rule must be one ‘without

which the likelihood of an accurate conviction is seriously diminished.’ ”

Id. Here, any act that a state-appointed counsel could commit that would

rise to the level of a due process violation would likely also implicate the

Sixth Amendment right to counsel; therefore, we cannot say that the lack

of this alternative remedy would seriously diminish the likelihood of an

accurate conviction.

JACKSON v. BROWN 927

trial by repeatedly making racially derogatory remarks to the

jury about petitioner and his African-American ethnicity.”

However, the claim itself makes the same due process argu-

ment Jackson makes before us, without any reference to

Strickland’s two-pronged framework. Because Jackson has

failed to properly raise an ineffective assistance of counsel

claim, we may not reach its merits.

B. Forced Jail Attire

Jackson wore jail clothes throughout the trial, and Veganes

repeatedly pointed out his attire during both voir dire and his

closing arguments. Jackson claims that his family asked Veg-

anes on his behalf to help obtain civilian clothing for the trial

and that Veganes failed to help them. Jackson asserts that this

failure violated his due process rights. The district court

rejected the claim, finding that “[c]ounsel’s decision to have

petitioner wear prison clothing was harmless because the jury

already knew Petitioner was in custody.”

“[T]he State cannot, consistently with the Fourteenth

Amendment, compel an accused to stand trial before a jury

while dressed in identifiable prison clothes . . . .” Estelle v.

Williams, 425 U.S. 501, 512 (1976). However, the Court in

Estelle held that “the failure to make an objection to the court

as to being tried in such clothes, for whatever reason, is suffi-

cient to negate the presence of compulsion necessary to estab-

lish a constitutional violation.” Id. at 512-13 (emphasis

added). Jackson concedes that Veganes did not object to the

jail clothing; indeed, the district court appears to have found

that it was counsel’s decision to dress him in such a manner.

Nevertheless, Jackson argues that an objection should not be

required when a court-appointed defense attorney forces a

defendant to wear jail clothing against his will. In such a sce-

nario, Jackson claims, it is the attorney, acting as a representa-

tive of the state, that provides the impermissible state

compulsion, and the due process violation cannot depend on

the agent of the compulsion objecting to his own actions.

928 JACKSON v. BROWN

[19] Again, Jackson’s argument requires us to first find that

Veganes’s acts constituted state action under the Fourteenth

Amendment. The State reiterates, and we agree, that Teague

prohibits applying such a rule retroactively to Jackson’s case.

For the same reasons described above, when Jackson’s case

became final on March 30, 1981, existing precedent would

not have compelled the California Supreme Court to hold that

a court-appointed defense counsel’s refusal to assist a client

in obtaining civilian clothes constituted state action sufficient

to establish a due process violation. See Polk County v. Dod-

son, 454 U.S. 312, 317 n.4 (1981) (describing how the circuits

were split over the issue of whether public defenders acted

under color of state law). Therefore, Teague prohibits us from

applying such a rule in this case, and Jackson’s failure to

object to his jail clothing prevents him from claiming state

compulsion on appeal.

C. Evidence of Ott’s Sexual Assault

Jackson argues that evidence of Ott’s sexual assault was

improperly admitted and was so prejudicial that it denied him

his right to a fair trial. Moreover, he argues that his attorney’s

failure to object to this evidence constituted ineffective assis-

tance of counsel.

At Jackson’s trial, evidence of the sexual assault first arose

during the prosecution’s redirect of one of the first police offi-

cers to view Ott’s body. The prosecutor asked the officer

about a bottle he found in Ott’s room and asked whether the

officer saw any material on the bottle. Jackson’s attorney,

Veganes, objected and was called to side bar:

My objection is based on 352 of the Evidence Code

on the basis that this question is calling for probative

material that is irrelevant in this case, because . . . it

would be highly prejudicial to describe any hairs or

any potential finding of semen at the scene, because

the reports are all negative in that regard. So to ask

JACKSON v. BROWN 929

questions just leaves speculation on the part of the

jury, so that they can speculate and make this a more

heinous thing than it already is . . . .

Veganes also argued that any evidence of Ott’s vaginal inju-

ries would be highly prejudicial and would be irrelevant as it

was not the cause of death. The trial court apparently agreed:

Well, it may have some relevancy to the penalty

phase, but I have some misgivings about its prejudi-

cial aspect at this phase of the trial; that is, this was

not the cause of death. It does not establish the bur-

glary. It is highly inflammatory and it seems to me,

unless the bottle were used as an instrument to cause

death, that—its prejudicial aspects outweigh its pro-

bative value at this time.

Despite this initial ruling, the court later allowed several

witnesses to testify about Ott’s sexual assault. The day after

the ruling, the prosecutor asked a medical examiner to

describe Ott’s injuries. Veganes objected that “to sit and name

every injury that is potentially found by this witness is really

irrelevant and inflammatory and far exceeds the probative

value.” The trial court overruled the objection, and the exam-

iner testified to all of Ott’s injuries, including those to her

vagina. Veganes did not make any other specific objections.

Similarly, both jailhouse informants elaborated in their testi-

mony about the sexual assault. Mikles claimed that Jackson

told him “that he was so hot at her that there was a bottle on

the stand next to the bed and he took the bottle and he fucked

her in her pussy with it, his exact words he told me.” McFar-

land testified that Jackson said he had “seen a wine bottle or

a long-necked bottle of some kind and stuck it into her vagi-

na.” Veganes failed to object to either of the witnesses’ state-

ments.

Jackson claims that this evidence should not have been

admitted and was so prejudicial that it violated his due pro-

930 JACKSON v. BROWN

cess rights. Even if the state court admitted the evidence in

error, “we cannot disturb the state trial court’s admission of

[evidence] on due process grounds in a habeas proceeding

unless the admission . . . rendered the trial fundamentally

unfair.” Kealohapauole v. Shimoda, 800 F.2d 1463, 1466 (9th

Cir. 1986). Jackson also argues that his attorney’s failure to

object to the evidence was ineffective assistance of counsel.

Jackson must prove that his counsel’s performance was defi-

cient and that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington, 466

U.S. 668, 687-88, 694 (1984).

Assuming, without deciding, that this evidence was admit-

ted in error, it did not render Jackson’s trial fundamentally

unfair with respect to his convictions. Similarly, even if Veg-

anes’s failure to object was deficient, we cannot find that, but

for his errors, there is a reasonable probability that the jury

would not have still convicted Jackson of first-degree murder

and burglary.

[20] The evidence of Jackson’s guilt was overwhelming.

Jackson confessed to all of the elements of felony murder. His

confession was corroborated both by forensic evidence plac-

ing him at the scene of the crime and by the admissible testi-

mony of several other witnesses. The evidence of Ott’s sexual

assault might well have been prejudicial as to the special cir-

cumstances findings, which required finding that Jackson

acted with the intent to cause death, but it is extremely

unlikely to have prejudiced the underlying convictions. There

is no evidence that the introduction of this evidence “had sub-

stantial and injurious effect or influence in determining the

jury’s verdict.” Brecht, 507 U.S. at 637 (internal quotation

marks omitted). As a result, Jackson is not entitled to habeas

relief on this ground.

D. Right to Confrontation

Nor do we agree that the introduction at trial of preliminary

hearing testimony from Debria Lewis and Larry Rushing vio-

JACKSON v. BROWN 931

lated Jackson’s constitutional right to confrontation. The Sixth

Amendment guarantees the right of an accused in a criminal

prosecution “to be confronted with the witnesses against

him.” U.S. Const. amend. VI. Nevertheless, the prosecution

may introduce the prior testimony of a witness without run-

ning afoul of the Sixth Amendment, as long as two criteria are

met: “First, the prosecutor must prove that the witness is

unavailable to testify at trial. Second, the defendant must have

had the opportunity to cross-examine the witness at the prior

hearing.” Windham v. Merkle, 163 F.3d 1092, 1102 (9th Cir.

1998); see also United States v. Inadi, 475 U.S. 387, 392-94

(1986); Ohio v. Roberts, 448 U.S. 56 (1980). A witness will

be deemed “unavailable” only if “the prosecutorial authorities

have made a good-faith effort to obtain his presence at trial.”

Barber v. Page, 390 U.S. 719, 724-25 (1968). “We review de

novo whether the Supreme Court’s standards for unavaila-

bility have been met.” Windham, 163 F.3d at 1102. In this

case, Jackson had an opportunity to cross-examine both Rush-

ing and Lewis at the preliminary hearing, so the only question

is whether the State made “a good-faith effort” to procure

their appearance at trial.

An investigator, Herman Roethel, testified on December

21, 1978, about his efforts to locate both witnesses. Roethel

testified that on August 16, he was informed that the subpoe-

nas sent to both Rushing and Lewis had been returned in the

mail. Roethel visited Lewis’s apartment but discovered it was

vacant. He managed to contact her husband, who told Roethel

that he had not seen his wife in some time but would instruct

her to contact Roethel if he did. On September 29, Roethel

followed up with her husband, who told him that Lewis was

in custody awaiting a child custody hearing. While Lewis was

in custody, Roethel personally served her with notice to

appear in court on October 3; however, Jackson’s trial was

subsequently continued. Soon thereafter, the authorities

learned that Lewis had several outstanding warrants under dif-

ferent aliases, so they held her in custody until October 20 for

a prostitution charge. However, Roethel only learned of

932 JACKSON v. BROWN

Lewis’s aliases and prostitution after she had been released on

bail, at which point he “lost touch with her.” From then until

December, Roethel repeatedly checked a system to see

whether Lewis had been arrested under any of her aliases.

Finally, Roethel contacted one of Lewis’s friends, who indi-

cated that she had been operating as a prostitute on a particu-

lar street corner. Roethel visited the corner several times, but

was not able to locate her.

Roethel also testified about his attempts to locate Larry

Rushing. Roethel first visited Rushing’s parents’ home. His

sister told him that Rushing occasionally came by the house,

so Roethel left a business card with her and instructed her to

have Rushing contact him. Roethel called the house over the

next few weeks, and Rushing’s sister told him that she had

given Rushing the card. On August 29, Roethel contacted an

officer named Woodward at the L.A.P.D. who had been in

contact with Rushing and who volunteered to contact him

again. Roethel took no further action until December 21,

when he returned to the parents’ house to let them know

Rushing would be needed the following week for trial; they

said they would likely see Rushing over the holidays. Roethel

again contacted Officer Woodward, who claimed that he had

not had time to contact Rushing but that he would do so. On

December 28, Woodward said he had still not had time and

informed Roethel that Rushing was wanted on a warrant. Roe-

thel then contacted Rushing’s probation officer who con-

firmed Rushing’s pending warrant and said that he had not

reported in since June. Finally, Roethel obtained an address

for Rushing and visited it several times but he was never

there.

The trial court held that the investigator had made a reason-

able, good-faith effort to secure the witnesses’ presence and

allowed the State to introduce the preliminary hearing testi-

mony:

I believe that the test is one of reasonable efforts

to secure the attendance of the witness, and in mak-

JACKSON v. BROWN 933

ing an evaluation of the efforts in this case, I am

forced to consider the life-style of the people that the

process server was seeking to serve.

[Rushing] apparently is a fugitive from justice and

the only inference I can get from the testimony is

that he is hiding out. [Lewis] is apparently a prosti-

tute, at least part-time prostitute, who goes by many

aliases and would be extremely difficult to locate if,

in fact, she didn’t want to be located. I expect rea-

sonable efforts to include the things the process

server did in this case. I don’t think you can ask him

to perform superhuman efforts to locate witnesses

such as these, and I think, under the circumstances,

that he did make a diligent effort to serve them with

subpoenas. Therefore, I will permit you to read the

testimony of the two witnesses from the preliminary

hearing.

The district court agreed with the state trial court’s finding

and therefore denied Jackson’s claim for habeas relief: “Peti-

tioner had an opportunity to cross-examine Lewis and Rush-

ing at the preliminary hearing, and after making a good faith

effort to secure their attendance at trial, the prosecution suffi-

ciently established their unavailability.”

We agree under the circumstances that the prosecution

made a good-faith effort to procure Lewis’s appearance. Roe-

thel personally served Lewis while she was in custody, and

she apparently would have been present to testify had the trial

not been continued (Lewis remained in custody on the date of

her originally scheduled appearance). After Lewis was

released, Roethel repeatedly checked to see if Lewis had been

booked under any of her aliases. Finally, once Roethel learned

of the street corner where she was allegedly working, he

repeatedly visited the corner to no avail. In light of Lewis’s

transience and the shifting trial dates, Roethel’s efforts were

reasonable.

934 JACKSON v. BROWN

In contrast, we find that Roethel’s efforts to procure Rush-

ing’s appearance were insufficient to meet the unavailability

requirement of the Confrontation Clause. The Sixth Amend-

ment requires “good-faith efforts undertaken prior to trial to

locate and present th[e] witness.” Ohio v. Roberts, 448 U.S.

56, 74 (1980) (emphasis added). At the time of Jackson’s

trial, California similarly recognized that the state was “re-

quired to show . . . due diligence in attempting to locate [the

witness] within a reasonable time before trial.” People v. Ben-

jamin, 3 Cal. App. 3d 687, 696 (1970) (emphasis added). Yet

Roethel testified that he did absolutely nothing to locate

Rushing between August 29 and December 21, several weeks

into the trial. Instead, he relied exclusively on Officer Wood-

ward to contact Rushing. During this time period, Woodward

apparently made no effort to contact the witness because he

was “too busy and he hadn’t had really any time to check it

out.” Woodward’s occupation with other matters cannot

excuse the prosecution from the Sixth Amendment’s require-

ment of good-faith efforts. Moreover, it is irrelevant whether

Roethel reasonably relied on Officer Woodward; Woodward

was himself a state agent and was therefore no less responsi-

ble than Roethel for performing good-faith efforts to find

Rushing.

[21] Although the admission of Rushing’s preliminary

hearing testimony violated Jackson’s right to confrontation,

we cannot grant habeas relief unless the error “had substantial

and injurious effect or influence in determining the jury’s ver-

dict.” Brecht, 507 U.S. at 637 (1993) (internal quotation

marks omitted). Rushing’s testimony did not have such an

effect on the jury’s guilty verdicts. Rushing testified that Jack-

son said he had “hit” an “old lady” during a burglary and that

he was going to “get the TV from next door.” This is certainly

incriminating testimony, but it added little to Jackson’s con-

fession, which included both of those facts. Indeed, Jackson’s

defense attorney himself urged the trial court to exclude

Rushing’s testimony as “cumulative.” The testimony likely

JACKSON v. BROWN 935

had at most a negligible effect on the jury’s verdict, so it must

be considered harmless error under Brecht.

E. Cumulative Effect

Finally, Jackson argues that the cumulative effect of the

constitutional errors in his case denied him a fair trial. “Cu-

mulative error applies where, although no single trial error

examined in isolation is sufficiently prejudicial to warrant

reversal, the cumulative effect of multiple errors has still prej-

udiced a defendant.” Whelchel v. Washington, 232 F.3d 1197,

1212 (9th Cir. 2000) (internal quotation marks and alterations

omitted). We must ask whether the aggregated errors “ ‘so

infected the trial with unfairness as to make the resulting con-

viction a denial of due process.’ ” Parle v. Runnels, 387 F.3d

1030, 1045 (9th Cir. 2004) (quoting Donnelly v. DeChristo-

foro, 416 U.S. 637, 643 (1974)).

The prosecution violated Brady by failing to disclose

inducements provided to both Mikles and McFarland, and it

violated Napue by allowing these witnesses to present false

testimony about these inducements. We assume, without

deciding, that the trial court erred in allowing evidence of

Ott’s sexual assault to be presented. Finally, the admission of

Rushing’s preliminary hearing testimony violated Jackson’s

right to confrontation.

[22] We conclude that Jackson was not deprived of a fair

trial as to his convictions. Even if the prosecution had entirely

withheld Mikles’s and McFarland’s live testimony, Rushing’s

recorded testimony, and any testimony describing Ott’s sexual

assault, it seems highly unlikely that the jury would have

acquitted Jackson of the felony-murders and the burglaries.

As described above, much of this testimony was crucial to the

special circumstances finding that Jackson committed the

crime “with the intent to cause death”; however, Jackson’s

confession, the forensic evidence placing him at the scene of

the crime, and the supporting testimony of Debra Hall

936 JACKSON v. BROWN

together provided overwhelming evidence of Jackson’s guilt.

Therefore, we find that the errors in Jackson’s case did not so

infect his trial with unfairness as to require reversal of his

conviction.

V. CONCLUSION

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.